The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1887-01-28

term CONTESTED election it is provided in one
of those sections that if the election be declared
invalid the Office shall be vacant. Now, then,
there is no limitation upon the legislative power,
SO far prescribing the remedy is concerned,
by the Constitution in this particular Gaze.
Upon the contrary, the Constitution says that 1t
shall be determined by them. It shall be de-
cided in such manner as provided by law. That
section gave the Legislature the power to make
any provision which was deemed reasonable and
just concerning the manner of trying and con-
testing the title to the Office of Lieutenant-gov
ernor. 1t gave the Legislature power to settle
by legislative enactment what questions should
be considered in that connection. by what pro-
ceaure the case should be tried, upon what no
tice it should be tried and what the judgment OF
the court should be-
Justice Mitchel-In that connection could that
legislative committee try the question as to
whether there was vacancy in the Office, do
you Think
Mr.. Michener-Yes, SIR because there is no
limitation of power in the statute itself nor in
the Constitution, therefore they have full power.
Justice Mitchell-It was my idea that here in
our own court we have frequently decided, even
whore the Legislature had, supposipg the Office
was vacant, made an appointment itself to that
office. that the office was not vacant and ousted
the appointed
Mr. Michener-Yes. sir: in cases where there
was no such provision with relation to contest
ing the title to the Office In this case our Con-
stitution creates special tribunal It has
special powers. and relates only to the Offices of
Governor and Lieutenant governor
Justice Mitchell-In that proceeding, then.
contestng an election, you adhere to the opinion
that they would first try aud determine the
question to whether there was q vacancy in
the Office, and then try and determine the ones
ton as to who was entitled to fill the vacancy2
Mr.. Michener-They would first determine
whether there was vacancy which could be
filled at general election, and then decide who
received the greatest number of votes, deter
frys, 1A-
eide the question of title It follows as natural
consequence. That view is strengthened by that
clause in the statute which authorizes that court
to say that there was no election that is to say,
that the election was invalid, and therefore the
Office vacant Not upon the theory at all that
the minority candidate at lawful election is not
entitled to the office, as stated by Mr.. Brown.
Justice Mtchell-You think they have right
to litigate in that proceeding the rights of the
incumbent. Here is an election held and one
person elected to an Office. Another claims that
his time is not yet out. You think that legis-
lative committee have the right to determine
that his time is out, and to induct the other9
MIR. Michener-Yes sir, it would have that
right because the Constitution and the statute
confer that right; and, moreover, that decision
is final and conclusive and cannot be questioned
In any court, because full power is delegated to
the Legislature by the Constitution, and the
Legislature, in fixing the rules of action, have
said by this section that their decision shall be
final and conclusive.
NOW III is PROVIDED py SECTION III, ArC1cIe & OF
our Constitution that each house shall judge the
elections, qualifications and returns of its own
members. Judge Cooley says, in his work on
Constitutional Limitations. page 103. that the
House exercises judicial powers in such cases.
yet court will take jurisdiction of cases of
that kind by quo warrantO. l have made dill
gent search in the textbooks and reports for one
where court OF the State has undertaken
to assume jurisdiction of cases Of that
character, by quo warranto or by
injunction, and I have not found one case
Upon the contrary have found cases where
the courts have refused to exercise jurisdiction
in cases of that character, putting it upon the
ground that the Legislature is made by the Con-
stituton the sole and exclusive tribunal for the
trial of questions of that character and ] will
call the courts attention to few Of those cases:
One is the case of The People VS.. Mehauey,
18th Mich. 4S1. the opinion being written by
Judge Cooley. The other is in 43d Ohio State,
the case of Dalton vs. The State, page 6S0-a
case celebrated not only in judicial but in polti-
cal circles and decided in 1885 The suit, there,
was for the purpose of deciding who had been
elected from hamilton county to the Legislature
of Ohio It was an action in quo warranto. The
Supreme Court say:
But. fortunately for ALL there is a complete and
adequate remedy and sure and safe refuge for all this
doubt and complication in the Constitution of our
State, which has wisely ordained: THAT each house
shall be the judge of the election returns and quaf
cations of its members and in the statute enact
ed to effectuate its salutary provisions. The
jurisdiction of each house to decide upon the election
preme and exclusive. No court of the State has,
is it possible under present Constitution clothe
the validity of the returns, the election of any
ddate for either house. or to decide him elected de-
feated.
If that be true, by virture of such constitu-
tonal provision that it is also true there is
conferred upon the House the jurisdiction to try
contested election of Lieutenant governor.
IL it not also true that no State court can have
jurisdiction of cases of that kind9 The language
of the one section is far stronger than the other
Now. these same rules have been applied to
| cases involving the title to State Offices The
case of the State vs.. Garrett (13th Maryland,
327) suit to try the title to State Office.
In Mary land there is a constitutional provision
like this:
missioner of the Land Once shall be decided by The
House of Delegates.
The court say:
1t could not we think be considered an open cues
ton at this day that where the exclusive and sole right
to decide upon question has been confded TO any t
buna and appeal allowed from its decision in the
premises, that such decision must be taken as fna
| and conclusive no matter what may have been the
reasons which induced such decision The power
given to the House of Delegates under the Consttu
ton and law is not the special or limited Jurisdiction
as urged at the bar liable the reasoning appli
cable to the judgments of such tribunals Its jurs
diction is the only entire and absolute in Of
contested elections for the Office of Comptroller There
| is other tribunal which review it.
| In the case Of the State VS.. Baxter (28 Arkan
| sas, 1927 we have which is all On all fours
! with the at bar. In that case it was claimed
that Baxter had for four months usurped the of
| fee of Governor of State, and application wa.
made to the Supreme Court for leave to pro
| coed against him by an information in the nat
| ure of quo warranto. The Constitution of AR
kansas on the subject Of contesting the election
| of Governor and Lieutenant-governori is similar
to the Constitution Of this State-indeed. tn.
| language is almost identical. 1t makes the Gen
| eral Assembly the court in which such question:
are to be tried. In discussing the constitutional
| provisions. the court say:
/ The magnitude of the court shows the importanc
the convention attached to the issue. They declar
that contested elections shall be determined by bot
houses of the General Assembly. and the manner O
the proceeding is regulated by the acts of the Legs
lature and it may be observed that this provision il
the Constitution does not limit the right to contest
The mode Of contest and trial of the rights of tn
claimants is to be the Legislature for it may direc